Where have you gone loyalty principle? Our nation turns its lonely eyes to you....

Every now and then, a case (or news item) comes along that makes you question just how strong those "values of the profession" that we love to say we are so proud of really are.

This summer the ABA, and many states, went through lengthy debates on whether allowing firms to use "screening" (in cases where a lawyer moves from one firm to another) goes against the value of loyalty. See blog entries here. As part of that debate, one commentator argued: ". . .it certainly appears that real ethics have given way to the interests of stranded, individual lawyers and surviving firms that want to “cherry pick” from the castaways. . . . Violations will occur and will be covered up. Clients will have to fall back on common law duty of loyalty (and common law principles that impute knowledge within firms) when they suspect their confidences have been purchased with a lateral. . . ."

But, okay, you can make the argument that that question is a close call. You can make an argument to justify the position taken by the ABA. Even after the approval of the new approach to the question, loyalty is still an important value. Right?

Then someone noticed that, as originally drafted, the new rule would have allowed attorneys to use screening to represent clients with competing interests concurrently.

Now, this won't do! So the rule was changed again...

Now enter the well oiled slippery slope.

Law.com is reporting that a Delaware federal judge has OK'd a lawfirm to use of a "screen" between the firm's U.S. lawyers opposing client Wyeth in a U.S. patent case and its European attorneys working with the pharmaceutical company in an unrelated matter.

In other words, the firm is representing Wyeth in one case and opposing it in another over Wyeth's objections.

Note this last piece of information - over the client's objections. So where exactly is the loyalty principle here?

The judge's order reportedly states that the client's opposition "means the firm is technically violating the Delaware court's local rules and the American Bar Association's Model Rules of Professional Conduct."

You have to love the use of the word "technically"! I am sorry, but there is not "technicality" here... The firm's conduct is either a violation or it isn't. And this judge simply admits he has agreed to the firm's attempt to act in a willful violation of the rules.

Why would the judge do that, you wonder? Well, essentially, there are two reasons: it is the client's fault and "globalization."

Yep. Believe it or not, the court allows the firm to willfully act unethically because, according to the judge, it is the client's fault. According to the article, he blamed Wyeth for not clearly indicating to the firm which of its in-house attorneys were working on which matters and for having sloppy legal billing practices. "[These practices] . . . created significant confusion for [the lawfirm] as to which entity or entities it was representing,"

And then, there is the obligatory mention of "globalization." The article quotes one of the partners of the law firm in question as saying: "When you're dealing with increasingly globalized economies, increasingly globalized law firms and different countries . . . . courts will likely look to the use of ethical walls "to reconcile all of these tensions."

Re-enter the aforementioned slippery slope.... Couldn't a firm with separate offices in New York and Chicago make a similar argument?

Maybe the mistake someone found in the new rule 1.10 was really just an omen. Maybe we are not that far away from allowing firms to represent competing interests concurrently after all.

Listen people, if your client objects to your representing a competing interest, do the right thing and respect your client's wishes. Your interest in securing another lucrative client or case should never come before your duty to your current client. That is called your fiduciary duty, in case you forgot.

The latest Gallup poll shows our profession could still go lower in the public opinion of trustworthiness. Let's work to move up, not further down.

Go here and here for the full story.

California considers allowing victim statements as part of discipline cases

Law.com is reporting today that for more than two years, the California State Bar has been endorsing tougher and more aggressive prosecutorial tactics in disciplinary matters. The most recent example is a proposal to allow victims to submit a written statement explaining how their former attorneys' alleged misconduct hurt them. Statements would be submitted only after an attorney has been found culpable of pending charges and would be used by the State Bar Court judge in determining the level of discipline to be imposed. Accused lawyers would be allowed to cross-examine the victim only if they demonstrate good cause.

Go here for the full story.

Case dismissed because of attorney's misconduct

When is attorney misconduct so egregious that it warrants dismissal of the client's case? That was the question for the 7th U.S. Circuit Court of Appeals in determining whether to uphold the dismissal of a case that was thrown out for what Chicago federal district court Judge Milton Shadur described as a "virtually unbroken pattern of dilatory and irresponsible conduct" by plaintiffs lawyer Jorge Sanchez of Despres, Schwartz & Geoghegan. The appeals court upheld Shadur's decision, ruling that a district court's power to sanction for violations of the judicial process is necessary to ensure the integrity of the court. Go here for the full story.

Another criminal conviction vacated because of prosecutorial misconduct

Saying a federal prosecutor engaged in misconduct by asking jurors to rely on false testimony by a government witness, a judge has ordered a new trial for four defendants on some counts in a drug conspiracy case in Chicago. For the full story go here and here.

Time sheets

Time sheets during a "good economy" ...

Time sheets in a "bad economy"

Thanks to David Mills of Courtoons.

New decisions on unauthorized practice of law

The Supreme Court of Ohio ruled today that Cincinnati-based Foreclosure Solutions L.L.C. and the company’s owner, Timothy A. Buckley engaged in the unauthorized practice of law by giving legal advice and negotiating with lenders on behalf of thousands of property owners facing foreclosure of their mortgages. For the full story go here.

Last week, the Illinois Court of Appeals (4th division) decided a case called People v Harris, in which it affirmed a conviction of a law school graduate for "false personation of an attorney." He admitted that he was not admitted to practice in Illinois.

The applicable statute reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

Incompetence results in discipline

Although the rules of conduct include a rule that requires competence, it is not all that common to see discipline imposed for a single instance of incompetent representation. Thus, it is a little surprising to hear about a new case by the Nebraska Supreme Court in which it suspended an attorney who had failed to provide competent representation in a civil rights lawsuit. The case is available here. The attorney had never handled a similar lawsuit in the past, failed to associate with more experienced counsel and failed to adequately prepare for the case. The attorney did not contest the charges.

Thanks to Mike Frisch of the Legal Profession Blog for the information and link.

On the slow death of the billable hour...

Here is a an article in today's Wall Street Journal Blog on different ways in which companies are trying to avoid having to agree to pay their lawyers by the hour. The article is available here.

Public opinion of lawyers

Only 25 percent of Americans have a positive view of the legal field, according to a new Gallup survey. Go here for the story.

Ninth Circuit reverses conviction because of prosecutorial misconduct

The 9th U.S. Circuit Court of Appeals has thrown out former Brocade CEO Gregory Reyes' criminal conviction for backdating stock options because of prosecutorial misconduct. The Court ordered a new trial because the prosecution misled jurors with false assertions during closing arguments. The opinion is available here. Full story here.

Should stealing from a client be minimized because of "mitigating factors"?

Readers of this blog and my students know how I would answer this question.

The Legal Profession Blog is reporting today on a case where an attorney who had misappropriated entrusted funds was only suspended for one year by the New York Appellate Division. The opinion is available here. In imposing the short suspension, the court considered the following mitigating factors: the lawyer's previously unblemished record, the lack of economic harm to any client, the respondent's sincere remorse, the positive character evidence submitted, the prompt remedial measures undertaken and the fact that the underlying events took place over a limited period during which the respondent was experiencing medical problems and adverse reactions to prescribed medications.

I would have voted to disbar. No question. I can't think of any argument that will convince me that you can justify stealing money from a client. My 5 year old son knows you don't steal. A lawyer who has an ethical and fiduciray duty should know better.

The mitigating factor that bugs me the most is "the lack of economic harm to any client." So, let me get this straight, suppose the lawyer needs money to pay some medical bills... it is now "not so bad" to take clients' money to pay the bills as long as the lawyer replaces the money before anyone misses it?

Moral Turpitude?

I have heard colleages of mine complain that the concept of "moral turpitude" is not very clearly defined as a standard to determine if an attorney should be disciplined. Now comes news of a case that should add fuel to that fire.

The Legal Profession Blog reported yesterday that a District Of Columbia hearing committee held that a lawyer should be disbarred because he engaged in conduct involving "moral turpitude." What is interesting about the case is that this decision was actually a reversal because the Board on Professional Responsibility had concluded that the lawyer's conviction did not establish moral turpitude per se.

Now here are the facts of the case: the lawyer had come home angry about something relating to the Maryland or D.C. lottery. He then proceeded to shoot his wife in the head with a .32 caliber revolver. Fortunately, she survived and the lawyer was sentenced to 25 years in prison.

Now here is my take on this: do we really need to get into a debate as to what constitutes moral turpitude, have a committee issue an opinion, hold a hearing to have another commitee then issue a reversal all to conclude that a guy who shoots his wife in the head when he gets angry and is sentenced to served 25 years in prison should not be allowed to practice law?! I mean, c'mon people! He shot his wife in the head; he got convicted!! What more do you need to know?

Judge holds rules re advertising on the internet are invalid

A federal judge has struck down two Louisiana rules of professional conduct that attempted to regulate Internet advertising. The opinion is available here. The court ruled that the state did not provide any evidence that one of the rules was narrowly tailored to directly and materially advance substantial state interests and that it was not clear that the other could apply to internet advertising.

For more on the story go here.

Lawyer disciplined for blogging about trial while serving as a juror

Not too long ago, I posted a note about a lawyer who got disbarred for not taking his role as a juror seriously. See here. Now comes news of a lawyer who disregarded a judges order not to discuss a case in which he was serving as a juror.

The lawyer had his law license suspended for 45 days when he decided to post comments on his blog about the trial after the judge warned the jurors "not to discuss the case, orally or in writing." Wilson has been cited as claiming that he did not understand the jury instructions to prevent him from posting comments about the trial on his blog. This argument merits only one response: Lame!

The lawyer simply disregarded a court order showing disrespect for the process. And it did not help his case that that the court of appeals reversed the convition at least in part because the lawyer blogged about the case.

For more on the story, go here.

More on the crisis of representation in cirminal cases

Here is another version of the story I reported earlier today about the public defender's office in California refusing to take cases for lack of resources. Go here for the story in Law.com.

How not to practice law: try to blackmail your opponents to get what you want

Blackmail is not a form of zealous advocacy. This is a simple principle apparently too difficult to understand for an attorney in Nebraska who was recently suspended for 120 days for attempting to blackmail a prosecutor to get the charges against his client dismissed. Interestingly, this is an attorney who had already been disciplined on two prior occasions - both for lying to the court.

As the Legal Profession Blog reports, the attorney wrote a letter to a prosecutor claiming that the newly-elected county attorney was in violation of the same law the attorney's client was accused of. The letter stated that if the charges were not dropped the attorney would file a motion requesting an investigation of the county attorney and included a draft of the motion. Finally, the attorney then stated that if the charges against his client were dismissed "Our lips, of course, are forever sealed."

The opinion is available here.

I have an additional comment on this case: is the sanction appropriate? I think this case is another example of the problem of an ad-hoc system of sanctions. Here is an attorney who has been disciplined twice already, who has demonstrated a pattern of conduct and disrespect for the court, his oath and the system. This is his third disciplinary case -- his second suspension. I don't understand why he his allowed to continue to practice law.

Access to legal services in criminal cases still in crisis

The ABA Journal.com is reporting today that the public defender’s office in Alameda County, Calif., is telling judges that it can no longer represent certain defendants because it doesn’t have enough lawyers to do the job and that public defenders in at least seven other states have refused to take new cases or have sued to limit the numbers. Full story here.

Prosecutor suspended for showing photos of rape victim

Prof. Jonathan Turley is reporting today that a County Attorney in Kansas was suspended from practice for six months after he showed pictures of a 17-year-old girl being raped to the parents of the alleged perpetrators over the objections of the victim's parents. The opinion is available here.

The prosecutor decided not to prosecute the offenders. He claimed "he had seen the damage underage drinking could do" and thought it would be better to show the photographs to the parents of teens depicted drinking at the party even though the victim's family objected. He also stated that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions.

The victim's parents are now suing the County over the disclosure of the photos. I don't think I have seen any case where prosecutorial misconduct is the basis for tort liability. For the full story, click here.

ABA fixes problems with new Model Rule 1.10

As is well known by now, earlier this year the ABA approved an important amendment to Model Rule 1.10 which recognizes "screening" as an acceptable way to avoid conflicts of interest caused when an attorney joins a new firm. Soon after the amendment was approved, however, it became clear that the rule was drafted in a way that seemed to suggest that screening could be used to avoid conflicts in cases of concurring conflicts - which was never intended. Go here and here for my reports on the approval of the new rule and the problem in drafting. Now comes word that the ABA has approved new changes to the new Rule to correct the mistake. In order to make clear that the rule applies only to laterally hired attorneys, the new rule would read as follows 

 Model Rule 1.10: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and . . . . 

 Thanks to Legal Ethics Forum for the update.

Should lawyer engaged in sex crime be disbarred?

A lawyer who works for the big firm Goldman Sachs has been accused of trying to arrange a sexual encounter with an undercover investigator posing in online chats as a 15-year-old girl. Should he be disbarred if convicted?

Interestingly, the New York Personal Injury Blog points out that although NY appellate courts generally issue unanimous opinions in cases dealing with ethics and lawyer disbarment, last December there was as a sharp divide in an identical case (See: Sex Offender Keeps Law License (Updated)).The Appellate Division, First Department ruled 3-2 that suspension was in order as opposed to disbarment.

New commission to review the ABA Model Rules again

Legal Ethics.com is reporting today that the ABA is about to undertake a new comprehensive review of the Model Rules of Professional Conduct. The new effort will be directed by the Ethics 20/20 Commission and will focus on issues related to globalization, including whether to allow multidisciplinary practice. For the full story go here.

Offensive form of advertising, but is it protected speech?

New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.

For the full story go here and for some comments go here.

Lawyer disbarred because he did not take his role as a juror seriously

The California Supreme Court has disbarred an attorney who reportedly changed his vote during jury deliberations simply to end a tie because he was tired of serving as a juror. For the full story, go here and here.

How NOT to practice law: lie to the judge

Suppose the judge calls for a hearing and you are not prepared. Here is what you should NOT do: do not tell the judge you can't make it that day because _______ (insert lie here.)

The Legal Profession Blog is reporting today that the Arizona Disciplinary Commission approved a proposed 30 day suspension followed by two years probation in a matter where the attorney had falsely advised a judge that he could not proceed to a hearing because he was due to appear in another court. The judge checked and found that the representation was false. The attorney admitted the misconduct and asserted in explanation that he was "emotionally frazzled" and unprepared due to a fight with his wife the night before the hearing and the theft of his briefcase.

Thanks to Mike Frisch of the Legal Profession Blog for the information.

Should there be a duty to report your own negligence during the representation?

The Legal Profession Blog is reporting today that the Minnesota Lawyers Professional Responsibility Board has proposed the adoption of Opinion No. 21, which states that a lawyer who knows that his or her conduct could reasonably be expected to be the basis for a malpractice claim by a current client, the lawyer should disclose any significant risk that continued representation of the client will be materially limited by the personal interest of the lawyer and should advise the client to seek independent legal advice about the potential claim and the lawyer’s continued representation.

For the full story and comments on it go here and here.

Trial tactics?

In my Professional Responsibility course, we spend a bit of time talking about "trial tactics." Here is a story that falls in that category. Prof. Jonathan Turley recently posted a comment on his blog on a case where an attorney filed a motion demanding that the court ordered opposing counsel to wear shoes without holes in court. The lawyer insisted that the shoes are cheap theatrics to play to the sympathies or jurors. The other lawyer replied that they are just cheap. For the full story go here.

More on "Sotomayor and Associates"

Go here for another update.

One more update on the story re Judge's Sotomayor law firm name

Here is yet another comment on Judge Sotomayor's possibly misleading use of a firm name by Eric Turkewitz, the blogger who actually brought up this story for the first time back in early June. Go here.

Don't take more work than you can handle

The New York Appellate Division for the First Judicial Department has imposed a three month suspension in a matter involving two instances of client neglect. The opinion is available here.

In a way this case is nothing other than another example of a lawyer trying to handle more work than he was capable of. What is interesting about this particular case, though, is that the court makes a point of saying that the lawyer actually meant well. His intentions were, in fact, very good:

". . . respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."

What is important, then, is to remember that it does not matter if your intentions are good. You simply can't run your practice in a way that neglects your clients. If you have too much work, you need to find a way to get it under control.

Thanks to the Legal Profession blog for the information.

Update on Judge Sotomayor's Advertising issue

Almost a month ago, I posted a note about a story regarding Judge Sotomayor's use of the phrase "and associates" in her firm name when it was not clear she had any associates at the time. (See here). As I pointed out in my note, the story was first brought up by Eric Turkewitz of the New York Personal Injury Law Blog. Well, apparently, the New York Times picked up on the story and published an article on it (without attribution to Turkewitz) and now a lot of people are talking about the issue. See the Legal Ethics Forum discussion here, for example.

See Turkewitz reactions to the NYT's story here and here.

See the NYT story here.

Statute of limitations mistake results in disciplinary sanctions

Mike Frisch of the Legal Profession Blog wrote today on a case in which the Tennessee Supreme Court affirmed a five month suspension imposed on an attorney for engaging in negligent conduct. The attorney missed the statute of limitations deadline for filing a personal injury suit. When I teach Torts, I tell my students this is one of the dumbest mistakes an attorney can make and I tell them it is a common basis for malpractice suits. I can now tell them it can also result in disciplinary sanctions. I knew that was true before, but my sense (which could be wrong since I am not following every single sanctions case out there) is that courts do not typically impose disciplinary sanctions for single instances of purely negligent conduct.

Should a candidate be denied admission to the bar because of too much debt?

Should a candidate be denied admission to the bar because of too much debt? Yes, says a panel in New York. Full story here. I understand it when a panel concludes that an applicant has demonstrated a recurrent inability to manage his or her finances (or has been irresponsible about it), but I am not so sure that simply having too much debt justifies denial of admission. It is not clear to me whether the case here is an example of the former or the latter. The story states that the panel that denied admission stated "that his student loans were too big and his efforts to repay them too meager for him to be a lawyer."

Thanks to Legal Ethics Forum for the link to the story.

More prosecutorial misconduct

After seeing two cases in less than three months where the Department of Justice asked the court to dismiss indictments after allegations that its lawyers violated rules requiring disclosure of information to the defense, a federal judge (Emmet Sullivan) sharply questioned Justice Department lawyers about whether they are in violation of the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.

In both cases the Justice Department was accused of withholding evidence and making false statements to the court. The latest allegation comes in the conspiracy cases against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme.

For more on this story go here and here.

Illinois adopts ABA Model Rules

The Illinois Supreme Court announced yesterday it has (finally) adopted a new set of rules mostly based on the ABA Model Rules of Professional Condcut. The rules will be effective starting January of 2010.

The text of the new rules is available online here and in pdf format here. A summary of the changes is available here.

In 2008, while the rules were still being considered by the Supreme Court, I published an article discussing them in detail. The article is available here. In it, I praised the work of drafting committees for the most part, but I also criticized some aspects of the new rules.

Here are a a few of the most significant changes in the new rules:

--Unlike the current rules, the new rules include comments (usually the same text of the comments to the ABA Model Rules).

--The new rules abandon the old notion that the duty of confidentiality is based on a distinction between confidences and secrets which results in a rule that protects a much broader range of information. (The Ethical Quandry blog has a short comment on the implications of the new rule on confidentiality here.)

--The new rule on confidentiality also significantly changes the circumstances where disclosure of confidential information is permitted and expands the circumstances where it is mandated.

--The new rules fix an important discrepancy between the title of rule 4.2 and its text.

-- The new rules change the approach to the issue of whether an attorney can represent a client if the attorney has to testify in the client’s case.

--The new rules adopt a specific rule banning sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship began and the comment to the rule clarifies that when the client is an organization, the rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters. (Rule 1.8(j))

--The new rules adopt a new rule to regulate duties to prospective clients based on Model Rule 1.18.

--The new Rule 3.8 on special responsibilities of prosecutors adds a duty to protect the defendant's right to counsel.. It also adds a controversial statement regarding the authority of a prosecutor to subpoena other lawyers.

--Unlike the ABA Model Rules, the new Illinois rules do not require consent to conflicts of interest to be in writing.

--Sadly, the new rules eliminate the current rule urging lawyers to provide pro-bono services.

--The approach to the duty to report another lawyer's misconduct seems to mandate disclosure of more information and under more circumstances than the ABA Model Rule.

--The new Rule 4.4(b) states that a lawyer who receives a document relating to the representation of a client that the lawyer knows was inadvertently sent should promptly notify the sender. The rule, however, does not impose a duty to return the document or to refrain from reading it. The comment to the rule states that unless there is applicable law that requires the lawyer to return the document, the decision to return it is a matter of professional judgment
and personal choice.

Prosecutor's comments result in conviction reversal and sanctions

The Legal Profession Blog is reporting today on yet another case of prosecutorial misconduct - improper arguments during the closing in a murder trial.

The prosecution's case was essentially based on the credibility of two witnesses which the defendan't lawyer vigorously attacked during closing arguments. In response, the prosecutor made statements that improperly vouched for the credibility of these two witnesses. As described in the opinion, "In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison." This conduct violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d).

In addition, the prosecutor's closing argument also crossed the line when he suggested to the jury that they should avenge the victims in violation of Mass. R. Prof. C. 8.4(d).

The murder conviction of one of the defendant was overturned by the Supreme Judicial Court and the court ordered a new trial due to the prosecutor's improper closing argument. (Commonwealth v. Williams, 450 Mass 894 (2008)).

Full story available here.

Sleeping during trial = ineffective assistance of counsel

A Brooklyn judge has reversed a conviction because the defendant's attorney (Michael Harrison) repeatedly fell asleep at trial, allegedly read magazines while witnesses testified and gave such a rambling, implausible opening argument that the jury laughed. The court held that "the facts and circumstances of this case compels this court to find that the quality of the legal representation provided to [the] defendant . . . was so insufficient that the integrity of the judicial process was placed in jeopardy. . ." and that "defendant did not receive the minimum level of representation that is required by law."

The case is People v. Irizarry, available here.

The full story is available here and here.

It's not so bad to violate a rule if you have a good reason for it. Huh??!!

The Legal Profession Blog is reporting today on a decision from the Maryland Court of Appeals that raises an interesting question regarding the nature of sanctions under the Rules of Professional Conduct.

In this case, the Court found that a lawyer violated Rule 1.8 when he made a loan to his client, but then found that this improper transaction was mitigated by the fact that the client requested the loan and that the client's need for the funds was based on some "pressing circumstances." The Court then concluded that, for this reason, the lawyer's conduct "did not rise to the level of an MRPC 8.4 violation."

I don't understand this. First of all, Rule 1.8 stands on its own. A violation of Rule 1.8 is a violation of the Rules. Thus there is no need for it to "rise to" any other level. Second, in almost all cases in which an attorney makes a loan to a client there are "pressing circumstances."

If there is a rule, the Court should apply it. What the court is saying here is that the lawyer violated the rule, but it is not so bad because he had a good reason for it.

I am sorry but that's absurd. That undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. Several states have created exceptions to this rule to allow for loans to clients in need. But don't say that it is okay to violate the rule if there is a good reason to do it. 

The opinion is available here.

Court finds concurrent conflict does not justify reversing conviction

The Legal Profession Blog is reporting today that the Idaho Supreme Court has affirmed a defendant's murder conviction even though the defendant claimed that his counsel labored under an imputed conflict of interest because a fellow public defender had represented the deceased wife's mother in a related matter. The court agreed that there was a conflict that would have required the personal disqualification of the other lawyer. However, the court found that the trial court's approval of a screen between the two lawyers was an adequate way to eliminate the problem (which is interesting since Idaho Rule of Professional Conduct 1.10 does not provide for screening as a cure for imputed concurrent conflicts). The court justified its decision concluding that there are unique considerations that apply to public defender offices that militate against a per se disqualification rule. The opinion is available here. I am not sure what to think, although the use of a screen to avert concurrent client conflicts does not sound right to me. But I will reserve my comments until I read the opinion.

How not to practice law: lie to the disciplinary committee

Again, taking a break from grading exams to post this new installment to our on-going series on "how NOT to practice law."

So, here is a little nugget of wisdom: if you make a mistake and have to appear before a disciplinary committee, do not lie! Committing perjury in a disciplinary proceeding is probably not a good idea!

The Legal Profession Blog is reporting today on a case in New York in which the Appellate division disbarred an attorney for, among other things, lying during the disciplinary process. What is interesting is that the court states clearly that the lying in and of itself would have been sufficient to justify the sanction: "Respondent's lack of candor before the Committee, the Referee and Hearing Panel normally arises in the context of aggravation on the issue of sanction. Here, however, as the Referee correctly noted, respondent's pattern of untruthful testimony while under oath before Committee staff constitutes significant misconduct, entirely independent of all his other misconduct which already justifies his disbarment."

Billing for time spent billing?

Suppose an attorney prepares a bill and sends it to a client. Then suppose the client asks the lawyer to review it, explain some items or revise it. Can the lawyer charge the client for the time spent reviewing the bill?

According to a Grievance Committee of the North Carolina Bar the answer is NO.

The ABA Journal.com is reporting today that the comittee held that a $50 charge to review a bill is the same as “task padding” and excessive. According to the committee, reviewing the bill is an “obligation every lawyer owes to a client and is an overhead expense incidental to the practice of law.” The Committee's opinion reprimanding the lawyer is available here.

Illinois appellate court finds ineffective assistance of cousel

I am taking a break from grading exams to catch up with blogs, news and other stories.

About a month ago, I reported that the Illinois Appellate Court (5th Division) reversed a murder conviction because of ineffective assistance of counsel. See here.

Today, the First Division of the same court has announced a similar ruling finding that the defendant was denied effective assistance of counsel because of his attorney's failure to make a closing argument and his failure to object to the admission of certain irrelevant evidence (a gun).

The court determined that although under many circumstances the waiver of closing argument is a matter of trial strategy, it would be a rare case in which choosing not to make a closing argument in a jury trial would be sound trial strategy. "Given the evidence in this case," the court concluded, "this was not such a case."

The case is People v Wilson and it is available here.

Did Judge Sotomayor violate ethics rules when in private practice?

A couple of months ago, I commented on a decision of the Supreme Court of Ohio which found that a lawyer had violated a number rules of professional conduct by using a firm name with the phrase "and Associates" when, in fact, the lawyer did not have any associates. Interestingly, I just read that Supreme Court nominee Sonia Sotomayor may have done the same thing at one point in the past. She referred to her firm as "Sotomayor and Associates" but it is not clear that she had any associates. For the full story go here.

Thanks to Eric Turkewitz of the New York Personal Injury Law Blog for the information.

Exams and vacation

You may have noticed I have not been posting any news recently. I have been busy trying to finish grading final exams and tomorrow I am taking a few days off to take our kids to visit their grandfather who lives several states away... This means I will be away from the computer for a little while longer, but I will come back with interesting stories, news and comments soon.

Comment on crisis re access to representation

Tort Deform Blog has published a short comment on the crisis regarding lack of access to legal representation in civil cases. Among other things, it points out that "although 50 percent of New Mexicans qualify for Legal Aid services based on income, the entire state has only 43 attorneys working for Legal Aid." This is very troubling. See the full comment here.

More on whether authors of "torture memos" should be disciplined

I have posted before on the debate regarding whether the drafters of the "torture memos" should be disciplined for violations of ethical duties (see here). Much has happened since I last posted on this issue.

Today, the Blog of the Legal Times reports that a collection of organizations have filed complaints with five state bar associations, accusing former attorneys general John Ashcroft, Alberto Gonzales, Michael Mukasey, John Yoo, Jay Bybee, Stephen Bradbury and a number of other former Bush administration lawyers of violating professional standards by sanctioning the use of torture on terrorism suspects. The complaints can be viewed here.

Professor David Luban, who testified today before the Senate Judiciary Committee has published his testimony here. In it, he argues that "the memos are an ethical train wreck" and that the they "fall far short of professional standards of candid advice and independent judgment."

The Washington Post also has an article on the subject here.

More on Pres. Obama's military tribunals

Here is a link to a good article on Pres. Obama's decision to resume the use of Bush era military tribunals by Joanne Mariner, the Terrorism and Counterterrorism Program Director at Human Rights Watch. The article starts like this:

"[L]ast Friday, the Obama administration announced that it would resume trials of Guantanamo detainees by military commissions, albeit under new rules that would offer defendants greater legal protections. . . . While the revised commissions improve somewhat on the model used by the Bush administration, they still fall far short of providing the due process guarantees found in U.S. federal courts.

Unsurprisingly, Republicans are jubilant. Portraying Obama's reversal as a belated embrace of the Bush administration's war on terror, their tone is unabashedly triumphant.
"With some minor changes, he really is following the same path President Bush pursued," declared [Ari] Fleischer. "He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney," crowed the Wall Street Journal.

This is not change we can believe in."

The full article is available here.

Obama to continue use of military tribunals

The Obama administration has announced it will restart the controversial Bush military tribunal system. The tribunal system has been widely criticized and a number of prosecutors have resigned their positions due to ethical concerns. For more information on this you can do a search for news items, particularly on the case of Army Lt. Col. Darrell Vandeveld who announced he resigned because he had grave doubts about the integrity of the system. For articles on this go here, here and here.

Article on what clients should think about when discussing hourly rates

Here is a link to an interesting article on the debate over hourly fee rates.

As the article states, "the imminent demise of the billable hour has been confidently predicted for years, maybe now more than ever. And yet,. . . the billable hour somehow manages to survive. The hourly rate -- at least until it finally dies -- is one of the knottiest aspects of the relationship between lawyers and their clients. The hourly rate problem can become a trap."

The article goes on to discuss what it calls "the fundamental problem with the billable hour" which is "how does one measure the value of a lawyer's time?" and provides five good reasons "why clients shouldn't fall into the "hourly rate trap," i.e. allowing retention decisions to be guided principally by hourly rates."

Illinois appellate court reverses conviction for ineffective assistance of cousel

In a rare victory for criminal defendants, the Chicago Daily Bulletin reports that the 5th District Appellate Court of Illinois has reversed two murder convictions finding that their trial attorney provided ineffective assistance of counsel for failing to present any evidence.

In his opening statement, defense counsel said repeatedly that the defendants would testify in their defense and that the jury would hear testimony implicated other suspects and that the physical evidence in the case implicated those suspects but not the defendants. However, after the prosecution rested, defense counsel rested without presenting any evidence.

The Daily Bulleting states that "as for his failure to present any evidence, defense counsel said: ''I'll hope you forgive me for not extending the trial about another week and not putting on any evidence. I ask you not to hold that against my clients; that is my decision because I thought we've had enough.''

The trial court denied the defendants' post-trial motions, finding that defense counsel had conducted a ''significant and meaningful adversarial testing'' of the state's case.

On appeal, the defendants argued that their convictions should be reversed because their attorney was ineffective for failing to call any witnesses in their defense. The appeals court agreed and reversed. The appeals court said that counsel may be deemed ineffective ''if he promises that a particular witness will testify during his opening statement but does not provide the promised testimony during trial'' and that "[w]e cannot conclude . . . that the resulting prejudice was harmless.'' The Court also stated that "[a]fter promising and suggesting that the jury would hear evidence supporting the defense, counsel failed to present any evidence whatsoever and his stated reasons for failing to do so are not reasonable explanations.''

The case is People v Bryant and it is available here.

Lack of funding affects representation of indigent defendants

I have blogged before about the problems in our criminal justice sytem due to the inadequate funding for programs that provide representation to indigent defendants. (See here).

Similarly, The National Law Journal.com is reporting today, that "an ongoing state funding shortage has left a number of indigent criminal defendants in Georgia without lawyers and that "a chronic problem of unpaid state legal bills, especially in expensive capital cases in which Georgia's public defenders are conflicted out of the representation, has made private lawyers unwilling to take on such cases, reports the Atlanta Journal-Constitution."

Are firms overbilling for online research?

Assume a firm has an account with an online research service like Westlaw or Lexis according to which the firm pays a flat fee for using the service. Then assume the firm conducts certain research for a client and charges the client hourly fees to perform the research. Is that firm overbilling the client?

Some people are arguing that some firms are "using Westlaw and Lexis as profit centers" and, as the National Law Journal.com is reporting today, at least one lawsuit has been filed claiming unjust enrichment against a firm that billed a client $20,000 for online legal research that cost the law firm only $5,000.

I have not seen the complaint in this case, so I don't really know what the allegation is, but I am guessing the issue here depends on what it is the firm is billing the client for. If the firm is billing the client for the value of the lawyer's time in doing the research, the firm should be free to charge the hourly fee. If, on the other hand, the firm is charging the client for "expenses" then the firm should only charge the client the actual value the firm is spending on the expenses.

Study Claims Bankruptcy Lawyers Are Billing Illegally

In a recent story published in the ABA Journal.com, Debra Cassens Weiss states that "A new study claims bankruptcy lawyers are billing their clients illegally by failing to get court approval before collecting fees. The study found that the lawyers bill bankrupt companies for about 80 percent of their fees without first submitting the charges to a judge as required by the U.S. Bankruptcy Code, Bloomberg reports. The study says the fees are instead reviewed later, but the payments “are harder to reverse than to prevent," according to accounts in the American Lawyer and the Wall Street Journal Law Blog."

The ABAJournal.com story is here. For a story on Law.com on the same topic go here

What do you have to do to get disbarred in Alabama?

I spend some time in class looking at the disparities in sanctions imposed for different types of offenses. Inevitably, we conclude that there is little consistency and, thus, I advise my students to remember that no matter what the conduct is, if it is improper a lawyer "always risks disbarment."

Here is a new good example to illustrate the disparity among jurisdictions. In this case, two different jurisdictions imposed discipline for the same conduct. The conduct included entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him.

For this, Alabama imposed a suspension of fifteen months. In a second case of misconduct, Alabama imposed four month suspension. In contrast, the proceedign in Florida involved these two same claims and a third one (misuse of client's funds) and the Florida Supreme Court disbarred the attorney. Which state do you think got it right?

Disciplinary procedure confidentiality rule declared unconstitutional

Louisiana Supreme Court has ruled that confidentiality rule that blocks any participant in an attorney disciplinary proceeding from publicly discussing the matter until formal charges are filed violates the First Amendment. The case is called In re Warner (available here.) Writing for the court, Justice Jeffrey P. Victory concluded that the confidentiality rule—which the court itself adopted in 1990—is a content-based prior restraint on speech. It cannot survive strict scrutiny, the court added, because the rule is not narrowly tailored to serve the state's interests.

Sanctions for deceptive firm name

Earlier this month the Supreme Court of Ohio ruled that a sole practitioner violated numerous ethics rules by using misleading firm names that incorrectly indicated he was involved in a partnership with another attorney and employed “associates.” The case is called Disciplinary Counsel v. McCord and is available here.

The Court held that lawyer acted deceptively when he improperly held himself out as a member of entities named “McCord, Pryor & Associates,” “McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.” Pryor was another lawyer who had an office in the same building as McCord but they did not operate under any recognizable legal structure, and they had no agreement to share profit and losses. They had separate clients, separate IOLTA accounts and separate fee income. They shared attorneys' fees only on cases they worked on together, never on their separate cases. At the time McCord created the entity he called "McCord, Pryor & Associates Co., LPA" Pryor had been dead for more than two years. McCord admitted that he formed this entity solely to thwart his ex-wife's attempts to garnish his bank accounts to pay for his outstanding child-support obligations. The Court also found that it was improper to use the words "and Associates" in a firm name when the attorney did not, in fact employ any associates.

On these facts, the Court agreed with the board that McCord committed the following rules violations:

• practiced under a misleading firm name (Rule 7.5(a) and DR 2-102(B));
• stated or implied that he practiced in a partnership or other organization when that was not so (Rule 7.5(d) and DR 2-102(C));
• committed an illegal act that reflected adversely on his honesty or trustworthiness (Rule 8.4(b)); and
• engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c) and DR 1-102(A)(4)), conduct prejudicial to the administration of justice (Rule 8.4(d)), and conduct adversely reflecting on his fitness to practice law (Rule 8.4(h)).

Yet another case of prosecutorial misconduct

Not too long ago I posted some comments on recent cases involving improper arguments by prosecutors (see here and here. Also, see here for other comments on cases involving other types of prosecutorial misconduct.)

Here is another case regarding improper arguments by a prosecutor. In this case, the Florida Third District Court of Appeal concluded that "while we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless."

The Court concluded that "we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” . . . “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”"

In a "reluctant concurring opinion" Judge Ramirez wrote that "Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter. I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.”

But here is a question for all the judges: if they all agree that the prosecutor engaged in improper conduct, and that the conduct requires the court to remind lawyers that if they don't understand their roles "they should not be members of the Florida Bar", how come they do not suggest imposing discipline in this case?

The opinion is available here.

Update on Supreme Court case re prosecutor immunity

A few days ago I posted a note on a case called Pottawattamie County v. Harrington which raises the issue of whether prosecutors should be immune from lawsuits for procuring false evidence in a criminal investigation and then using it at trial. The PopTort blog posted a comment on the case today which is available here.

Update on the case of the lawyer who altered law school transcript

A few days ago I reported on the case of a lawyer who was disciplined for, among other things having altered grades in a law school transcript in other to get a job. The ABA Journal.com is reporting today that the chief counsel for the Illinois agency that oversees lawyer discipline says the lawyer deserves to be disbarred, and he will appeal a recommendation for a lesser punishment. Law.com has also published a story on this here.

Different view on what constitutes business transaction with client

Model Rule 1.8 (and its state equivalents) do not ban a lawyer from engaging in business transactions with clients. However, it is clear this is allowed subject to many limitations. Today, a disciplinary Board in Colorado has decided that a lawyer is subject to sanctions because he wife was involved with a business transaction with one of the lawyer's clients. The Presiding Disciplinary Judge held that the lawyer negligently failed to terminate an attorney-client relationship when he learned about his wife's business transaction with the client. The Judge concluded this meant the lawyer effectively entered into a business transaction with his client without the appropriate disclosures in violation of Colo. RPCs 1.16(a), 1.8(a) and 5.3(b). The case is called People v. Montoya.

Thanks to Mike Frisch of The Legal Profession Blog for the information.

Another wake up call for students: conduct while in law school will come back to haunt you

An Illinois Hearing Board has recommended a three year suspension in a case involving an attorney who had failed to disclose information in his admission application to the University of Chicago Law School, was accused of plagiarism while in law school, altered his law school transcript (gave himself better grades in 20 courses!) to obtain employment and failed to disclose that conduct in the bar admission process. The opinion is available here.

UPDATE (April 28):  The lawyer is now facing disbarment.  Go here.

UPDATE (January 2010):  The Illinois review board recommended one and a half year suspension, which I criticize here.

UPDATE (June 3, 2010):  The IL Supreme Court rejects the Board's recommendation; imposes a 3 year suspension instead.  Go here.

Should a lawyer be suspended from practice for driving too fast?

Here is a new case that involves the often debated issue of whether an attorney should be sanctioned for conduct not related to the practice of law. In this case, the lawyer was involved in three incidents involving speeding violations--one of them for driving 140 mph in a 70 zone. In another traffic stop the police found marijuana in his car but the charges were later dismissed. Based on these facts, the lawyer agreed to a four month suspension.

The marijuana possession is clearly an indication that there may be a more serious problem behind the conduct, but for the sake of argument, let's assume the only issue was the traffic violations. Assume you have a lawyer who is stopped for driving 140 mph in a 70 mph zone and assume he or she has had numerous traffic violations for speeding. Should that alone justify imposing sanctions? What if the person is a candidtate for admission; should that conduct be considered in determining whether the candidate should be admitted?

Thanks to the Legal Profession Blog for the information.

How not to practice law: forge the judge's signature

The Legal Profession Blog is reporting today on a case out of Ohio in which a lawyer forged the signature of a judge on a draft judgment entry granting his client occupational driving privileges after the court had rejected the client's request. The lawyer claimed that he had signed the judge’s name on the rejected entry to show his client “what an approved occupational driving entry would look like” and then let the client keep the forged document.

In a 5-2 per curiam decision, the Supreme Court of Ohio found the lawyer's testimony “simply not believable” and concluded that the lawyer had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and illegal conduct adversely reflecting on a lawyer’s honesty or trustworthiness.

Based on these facts, the Court suspended the lawyer for one year. Do you think that was too lenient?

The court's decision is linked here.

Problems with criminal justice system

There is a lot of literature out there criticizing our criminal justice system for, among other things, not doing enough to protect the right to counsel and because some judges don't seem to care about the quality of representation provided bylawyers appointed to represent indigent defendants.

In a very ironic twist, today, the ABA Journal.com is reporting that Texas, the same state that gave us the famous sleeping lawyer case and the judge who closed the courthouse to prevent a last minute capital case appeal, should be criticized for rewarding the work of appointed capital case appellate lawyers.

Wait; that does not make sense, does it? We criticize the system because it does not reward the lawyers for their work, and now we are criticizing it because it does?

The problem is that what the article criticizes is the lack of oversight over the quality of representation. Lawyers are getting paid regardless of whether they do the work and, apparently, some are just not doing the work at all.

The story comes from the Houston Chronicle, which is reporting that Texas lawyers who have repeatedly missed filing deadlines in death-row appeals are not only being paid for their work but are allowed to represent inmates in other capital cases. The article mentions a few lawyers by name and states that only one of the lawyers the newspaper found to have repeatedly missed death row deadlines has faced fines or been forced to forgo fees by judges.

For more details about which lawyers reportedly have filed late and the excuses they offered for their tardiness, read the full article in the Chronicle.

How not to practice law: ask for stolen property as payment for your services

Here is another entry into our list of ways not to practice law: offer to exchange legal services for stolen property. Story here.

Supreme Court to Consider Prosecutor Immunity for Using False Testimony

Debra Cassens Weiss of the ABAJournal.com reports that the U.S. Supreme Court has decided to hear a case involving prosecutor immunity from lawsuits for procuring false evidence in a criminal investigation and then using it at trial.

According to the Supreme Court Blog, the case (Pottawattamie County v. Harrington) is "a significant new test case on prosecutors’ immunity to damage lawsuits for the way they conduct criminal investigations and then prosecute the cases in court."

The case was brought by two black teens imprisoned for 25 years after they were convicted of killing a retired, white police officer, the Des Moines Register reports. In their suit, the plaintiffs claim prosecutors coached witnesses to lie and concealed evidence. The case involves a distinction between absolute immunity, conferred for prosecutor errors during trial, and limited immunity that applies during the investigative phase of a case.

The implications of the case depend on your point of view, according to the Des Moines Register. “It either would prevent those who are wrongly convicted of crimes by deceitful prosecutors from recovering damages through civil suits, or it would put prosecutors in a weakened position, based on the fear of having to suffer for mistakes made while fulfilling their duty to protect the public."

Two thirds of Americans support legal aid for the poor

Two-thirds of Americans polled by the ABA support federal funding to help Americans who need legal assistance. Story here.

NY denies admission to candidate because of failure to pay student loans.

A few days ago I posted about a lawyer who was disbarred for not paying student loans. Today, the ABA Journal.com is reporting that the Appellate Division of the New York Supreme Court has refused to admit an applicant on character and fitness grounds, even though he passed the state bar in February 2008 because he has delinquent student loans dating back to 1985. The decision is available here. Full story here.

Illinois Opinion Adopts ABA View on Contact With Current Employees of Corporate Party

Illinois Rule of Professional Conduct 4.2 generally prohibits a lawyer who is representing a client from dealing directly with others who have their own counsel in the matter. However, the text of the rule does not indicate which employees of a corporation are considered to be represented for purposes of applying the rule.

A 1984 Illinois appellate court decision held that the anti-contact rule, then codified as DR 7-104, should be construed to prevent direct communications with persons in a corporation's “control group,” consisting of its top decision-makers and top advisors.

In a new opinion, the Illinois State Bar Association's Committee on Professional Ethics, however, has repudiated the narrow “control group test” for communications with current constituents in favor of the ABA's broader three-part standard (Op. 09-01, 1/09).

Endorsing the commentary to Model Rule 4.2, the opinion advises that three categories of current employees are off-limits for direct talks: those whose job brings them into regular contact with corporate counsel; those who have authority to obligate the entity in the matter; and those whose conduct in the matter is imputable to the company.

Following a long held view on a similar issue, however, the Committee reiterated that former employees of a represented party are fair game for informal interviews.

For more information go to this article in the ABA/BNA Lawyers' Manual on Professional Conduct: 25 Law. Man. Prof. Conduct 194.

Court holds that a lawyer's ability to pay must be considered in fashioning a monetary sanction

I have long been a proponent that sanctions must mean something. Mere slaps on the wrist do more harm than good. See here, for example. When it comes to monetary sanctions for attorney misconduct during discovery - which I have also argued is probably the most common yet least punished kind of attorney misconduct - I think the sanctions should be directed at the attorney - not the client and that they should be severe enough to cause the attorney to think twice about engaging in similar conduct in the future. How high the sanction should be to have this effect, however, I guess depends on the facts of the case.

One of these facts, according to the U.S. Court of Appeals for the Federal Circuit should be the lawyer's ability to pay. In ClearValue Inc. v. Pearl River Polymers Inc., (available here), the court threw out a monetary sanction that had been levied against an attorney for failing to turn over test results considered by a testifying expert. The sanction amounted to more than four times the lawyer's net annual income.

For more on this story check out this article in the ABA/BNA Lawyers' Manual on Professional Conduct. If you need a subscription to access the link, here is the actual cite: 25 Law. Man. Prof. Conduct 192.

More training for prosecutors

Attorney General Eric Holder Jr. said on Tuesday he would require additional training for prosecutors to reinforce their understanding of rules that govern discovery in criminal cases. Full story here.

Want to get disbarred? Go rob a bank

Back in January I reported on the proposed disbarrment of an attorney for having engaged in bank robbery (duh!). Yesterday, the Supreme Court of Louisiana affirmed. The opinion is available here.

Thanks to Legal Profession Blog for the cite.

Perry Mason Arrested For Unauthorized Practice Of Law

A 43 year old man going by the name Perry Mason, was arrested in Houston for practicing law without a license. Full story (very short) here.

I am assuming everyone gets the irony here, but maybe I shouldn't. For those readers who don't... Perry Mason is the name of the lead character (a lawyer) in a series of mystery novels by Erle Stanley Garner, later portrayed in movies and TV by actor Raymond Burr. The typical plot of a Perry Mason novel involves Mason's efforts to represent a client accused of murders he or she did not commit by disocovering the real murderer.

Thanks to the Faculty Lounge blog for the story.

Lawyer disbarred for failing to pay student loans

Here is another wake up call for our students: pay your loans!

The National Law Journal is reporting today that the Texas Court of Appeals has revoked the license of a Houston lawyer who failed to comply with a plan to repay student loans and other personal debts. The court said the laywer's conduct showed he did not have the trustworthiness needed to represent clients.

I am not sure how common it is for a lawyer already in practice to be disciplined for failing to pay his debts, but I do know that it is very common for Character and Fitness committees to delay admission to candidates who have accumulated a high level of debt when seeking admission to the bar. The Committees often want to interview those candidates to make sure the candidates understand their obligations and to get some assurance that the candidate will have the ability to pay the loans. With the rising costs of legal education and the bad economy -- which means not very encouraging job prospects for so many graduates -- this could become a real problem for many.

New report on prosecutorial misconduct

The Justice Project has released a report on prosecutorial misconduct. The report is available here. It starts: "Prosecutors are arguably the most powerful figures in the American criminal justice system. Prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The decisions of prosecutors have far-reaching consequences on defendants, victims, their respective families, and the general public. These broad powers reflect the prosecution’s unique
role in the criminal justice system as defined by the Supreme Court: “not that it shall win a case, but that justice shall be done.” The role of the prosecutor is not just one of an advocate, but rather an “administrator of justice” whose ultimate goal is to protect the innocent, convict the guilty, and guard the rights of the accused. Prosecutors—unlike defense attorneys—do not advocate for a single individual; they advocate for a just outcome. Given the special duties of prosecutors and the broad power they exercise in the criminal justice system, it is critically important that prosecutors conduct themselves responsibly and ethically."

Thanks to the Legal Profession Blog for the cite.

Another example of how not to practice law: be rude to the judge's clerk

The ABA Journal.com is reporting today that the New Orleans-based 5th U.S. Circuit Court of Appeals has upheld the punishment barring lawyer R. Michael Moity Jr. from practice in the federal court for one year for displaying "severe disrespect to the court by the anger and harsh tone,” of a conversation with a judge's clerk. The lawyer followed that with "lack of candor in sworn testimony when the very serious matter of a contempt hearing was held.” The misrepresentations regarded a prior state court contempt hearing in which Moity was ordered to undergo ethics training, but failed to comply with the initial punishment. The opinion is available here.

Possible changes to admission (and readmission) rules in Florida

The ABA Journal.com is reporting today that a report by a group reviewing Florida bar admission standards has called for a number of changes, including a permanent bar on readmission for any lawyer who is convicted of a felony. The commission also recommended better supervision of those conditionally readmitted because of prior drug, alcohol or mental health issues, and extending the maximum amount of time that a Florida lawyer can be suspended from practice from three years to five years.

For the full story go here: Florida Bar News.

Update on problems with the new Model Rule 1.10

About a month ago, I posted a note on the fact that the ABA made a pretty major mistake in drafting the recently approved amendment to Model Rule 1.10. The Legal Ethics Forum is now reporting that the ABA Rules Committee has rejected a request by the ABA's Standing Committee on Ethics and Professional Responsibility for a housekeeping amendment to fix the problem (by making it clear that the screening provision applies only to laterally hired attorneys). That is crazy! The rule can still be fixed but it will have to go back to the ABA's House of Delegates in August, where the correction would have to be formally adopted by the House. If that does not happen, we will end up with a very problematic rule that will allow firms to purposely represent clients with concurrent conflicts of interest.

To see my posts on the process of approval of the new Model Rule 1.10 click here.

Another example of how not to practice law: don't proofread anything before you file it in court

Irked by a Wisconsin lawyer's failure to proofread his pleadings, among other errors, a state appeals court has suggested that the lawyer should go get help with his legal writing and fined him $500 for violating basic rules of appellate practice. In a report on the story in the ABAJournal.com, the attorney blames his staff for his incoherent pleading and claims that everyone makes mistakes. At least he admitted he should have caught the mistakes. My guess is this would have been easy if he had read the document before filing it. This is another example of how not to practice law.

Federal prosecutorial misconduct

In a strongly worded, 50-page opinion (available here), U.S. District Judge Alan S. Gold has reprimanded federal prosecutors and ordered the U.S. government to pay a defendant more than $600,000, saying members of the defendant's legal team had been secretly recorded in a questionable witness-tampering investigation. The judge also criticized the prosecutors for failing turned over to the defense the information and for not informing the fact that two witnesses were cooperating with the government. The judge stated that these events "are profoundly disturbing'' and that they "raise troubling issues about the integrity of those who wield enormous power over the people they prosecute.''

Full story here.

When should the judge take action regarding prosecutorial comments?

The North Carolina Court of Appeals recently affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument. The defendant argued that the trial court erred by failing to intervene during the prosecutor's closing remarks, but the Court of Appeals found that the remarks were not grossly improper. For this reason it concluded that even though the lower court did not do anything, the remarks did not rise to the level of prejudice that would warrant a new trial.

New York City Public Defenders’ Caseloads to Be Capped

A provision in New York’s $131 billion state budget bill passed last week calls for a cap on the number of criminal cases each New York City court-appointed lawyer can handle. For more on the story go here. This is a good thing; but only if the budget also provides for more attorneys. Otherwise, what you end up with is the same number of attorneys handling fewer cases and more defendants lacking representation forcing a very bad choice: what's better? defendants getting inadequate representation because their lawyers have too much work, or defendants not getting representation at all because there are no lawyers available

Two N.J. Judges Face Ethics Charges Over Derogatory Comments From Bench

Two New Jersey trial judges are in hot water for belittling litigants with discourteous, undignified and discriminatory remarks from the bench. In complaints [available here and here], made public Monday, the Advisory Committee on Judicial Conduct accuses the judges of derogatory comments touching on litigants' alienage, ethnicity, race, honesty, language ability or physical ailments. The judges are charged, among other things, with creating an appearance of racial or ethnic bias. Fore more on this story go here.

Supreme Court to consider whether fees can be enhanced based on quality of representation

On Monday, the U.S. Supreme Court agreed to consider whether a fee awarded under a federal fee-shifting statute can ever be enhanced based solely on the quality of the lawyers' performance and the result they obtained. For more on this story go here.

More prosecutorial misconduct alleged

The Justice Department is once again being threatened with contempt of court after United States District Court Judge Emmet Sullivan found that they withheld evidence from the defense that a witness in a “significant” number of cases was mentally disturbed. Judge Sullivan found that the testimony of the detainee was unreliable, could be challenged in other cases, and could be the basis for a possible contempt order against the government. Full story here.

Prosecutorial misconduct; limits of proper argument

There appears to be an emerging trend of bar prosecutions against prosecutors -- which is definitely a good thing, by the way. Here is another example of prosecutorial misconduct, as reported by Mike Frisch from Legal Profession Blog.

An Arizona hearing officer recently recommended a 30 day suspension of a deputy county attorney for misconduct in a criminal case. The hearing officer found that "it is particularly troubling that [the] conduct began in opening statement and continued through rebuttal argument." The prosecutor had "carefully considered and deliberately chose to engage in the conduct at issue here. The repeated improper argument in opening statement, even after being admonished by the court, and the improper [closing] argument of the burden of proof were carefully calculated 'bookends' to [his conduct of the...trial." The prosecutor, among other things, put improper evidence before the jury, asked improper questions about inadmissible prior crimes, misrepresented DNA and other evidence, implied that incriminating evidence had been withheld and asserted personal knowledge of the facts by saying "we know" and "we can prove" in his opening statement.

On the relation between the rules of professional conduct and the concept of duty

Most states' rules of professional conduct state that they are not meant to illustrate duties in tort law, but that many (perhaps most) courts ignore this in the sense that they look at the rules as illustrations of proper conduct. In a new opinion from the Kansas supreme court, the court attempts to clarify the relation between the rules of ethical conduct and the concept of duty by stating that the rules of professional conduct do not create or recognize a claim in tort: "An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action." The opinion is available here.

Thanks to the Legal Profession blog for the information.

Ineffective assistance of counsel in criminal cases

Here is a link to a comment by Prof. Monroe Freedman on the appalling situation of ineffective assistance of counsel that so many indigent criminal defendants have to deal with in the US. It starts: "The young lawyer who resigned from the Walton County Public Defender’s office because she was not able to give her client’s the effective assistance of counsel, is unquestionably a hero. Unfortunately, she is also guilty of serious and sustained unethical conduct, as are her colleagues in the office, the supervisors, and the judges who presided over her cases. . . . As a result, she and her colleagues repeatedly assisted clients to plead guilty without doing any of the investigation or legal analysis that ethical rules and the Constitution require."

Consumer agency sues over Florida's rules on advertising

Public Citizen, a national consumer advocacy agency, has filed a lawsuit against The Florida Bar challenging the constitutionality of its ban on client testimonials in attorney advertising. Full story here.

Attorney ordered to return fees for violation of court order

A couple of months ago I posted a note about a case where, after a judge ordered a lawyer off a case and banned from getting any fees (because he had been caught bribing a witness), the lawyer entered into a secret agreement to get paid anyway. Today, Law.com is reporting here that the lawyer has been ordered to return the $450,000 he collected in fees through the secret deal.

Article about in house counsel conviction

Here is a link to an article that discusses the indictment, trial, conviction, and sentencing of Berkeley Nutraceuticals’ former in-house counsel Paul Kellogg. Mr. Kellogg’s conviction arose out of two distinct series of events – one that the government alleged was designed to cover up an FDA violation, and another that the government alleged was designed to evade the Federal Trade Commission (“FTC”). The article reminds us that as in-house counsel, the line between advising on legal matters and participating in business decisions can get blurred, but attorneys need to know their proper role. In this case, the attorney crossed the line and it earned him a conviction. The full article can be found here.

Thanks to the FDA Blog for the inormation.

BNA Lawyers' Manual article on Candor to the Tribunal

The most recent ABA/BNA Lawyers' Manual on Professional Responsibility has a good article summarizing the state of the law related to an attorneys' duty of candor to the tribunal. It discusses the following topics. among others:

False Factual Statements
Immaterial Statements
Omissions as Misrepresentations
Limits to the Duty to Disclose
False Statements of Law
The Duty to Correct False Statement
The Duty not to offer False Evidence
Evidence Believed to Be False
The Duty to Disclose Adverse Legal Authority
Duties During Ex Parte Proceedings
Duties related to False Evidence Already Offered
The Duration of the Candor Obligation

The article can be found here, although I am not sure if the link will work if you don't have a subscription to BNA. If it doesn't, look for the article with this citation: 25 Law. Man. Prof. Conduct 174.

‘Reverse’ Contingent Fees Are Allowed in DC

The District of Columbia bar's ethics committee issued an opinion this month that concludes that attorneys may charge a reverse contingent fee, based on how much the lawyer saves the client from having to pay a claimant, so long as the total amount is reasonable and counsel makes sure the client fully understands the risks and advantages before consenting to the arrangement. A majority of the committee said that although it is best for the lawyer to put in writing exactly how the sums and percentages will be computed when establishing the fee amount, a detailed written analysis is not mandated under the professional conduct rules. Three dissenting members disagreed, arguing that unsophisticated clients—and impartial reviewers seeking to settle subsequent fee disputes—need a written statement disclosing how the figures were calculated in order to discern whether the amount is reasonable. The opinion is available here.

Attorney who became prominent for provocative ad campaign and nude photos is now suing Playboy

Way back when I started this blog, I posted a photo that started a big controversy over advertising in Chicago. It depicted the semi nude bodies of a man and a woman and stated "life's short. Get a divorce." The ad campaign brought prominence to Chicago divorce attorney, Corri Fetman, who soon thereafter went on to pose nude for Playboy magazine. She also began to publish a regular column for the magazine. Actually, I don't really know which happened first -the posing or the publishing, but, in any case, she began a working relationship with the magazine. Now Fetman is suing Playboy alleging that an executive sexually harassed her before dropping her column from the magazine.

Full story here and here.

No duty to referring attorney

Here is an interesting case that discusses an issue I had never seen before.An attorney, representing a plaintiff in a medical malpractice action, referred the matter to another attorney. The attorneys and the client agreed that the attorneys would represent the client as co-counsel, with the attorney to whom the matter was referred having primary responsibility for representing the client, and the referring attorney rendering services if requested by the other attorney. The attorneys agreed to split any contingency fee 50-50. Ultimately, the client settled the claim, on advice of the attorney to whom the matter had been referred, for less than anticipated by the referring counsel. Referring counsel then sued co-counsel (the one to whom he had referred the case in the first place), asserting negligence, fraud, breach of fiduciary duty, intentional interference with contract, and breach of contract. The Court held that defendant co-counsel owed no tort duty to referring counsel, co-counsel fulfilled the contractual obligation between counsel, and co-counsel could not tortiouslyinterfere with a contract to which co-counsel was a party.

The opinion can be found here.

Thanks to LegalProfession Blog for the information.